Page:Cesan v The Queen.pdf/35

French CJ

"At another [level], as is clear from the judgment of the Court in Maher, they are concerned with 'failure to observe the requirements of the criminal process in a fundamental respect', of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect." (footnotes omitted)

If there be a flaw in a fundamental respect such that the appearance of injustice is indelibly stamped on the process and its outcome from the point of view of a reasonable and informed observer, this may be expressed by saying that public confidence would be undermined if the conviction were allowed to stand.

A trial process "flawed in a fundamental respect" falls into that category. Such deficiencies in process constitute miscarriages of justice. It may be that such a deficiency raises a possibility that a chance of acquittal has been lost but is of such a nature that no inquiry under the proviso could resolve that question. In that case it cannot be said that there has been no substantial miscarriage of justice. In such a case the proviso cannot apply. It may be that the deficiency is of its nature "substantial" and warrants no further inquiry, under the proviso, into its effects upon the appellant's chances of acquittal.

It is perhaps a reflection of the human condition and the demanding nature and expectations of the judicial function that the phenomenon of the sleeping or apparently sleeping judge has a long history dating back to Plato's reference to "dozing judges".

Appellate courts in common law jurisdictions have deprecated judicial sleepiness where it has occurred. Nevertheless in reported cases in the United Kingdom, the United States and Canada there has been a tendency to focus on the practical effects of the judge's conduct on the trial process. In many of the cases this may be attributed, at least in part, to the brevity or inconsequential character of the incidents. In some cases failure by counsel to raise concerns at trial about the judge's condition has been a significant factor weighing against appellate intervention. (Footnote continues on next page)